Strengthening human rights mechanisms around the world.

Position:Proceedings of the 101st Annual Meeting of the American Society of International Law: The Future of International Law - Discussion

The panel was convened at 9:00 a.m., Saturday, March 31, by its moderator, John Cerone of the New England School of Law, who introduced the panelists: Ngonlardje Mbaidjol of the Office of the High Commissioner for Human Rights; Cecilia Medina of the Inter-American Court of Human Rights; Fatsah Ouguergouz of the African Court of Human Rights; and Christos Rozakis of the European Court of Human Rights. *

INTRODUCTORY REMARKS BY JOHN CERONE ([dagger])

Over the past few years, reform has ranked high on the agenda of the United Nations and regional human rights systems. This panel will consider recent and ongoing reform efforts at the UN and regional levels, including the abolition of the UN Human Rights Commission and the creation of the Human Rights Council, the merger of the African Court of Human Rights with the African Court of Justice, and the adoption of Protocol 14 to the European Convention on Human Rights, as well as recent attempts to streamline the Inter-American system.

The panel will consider not only the implications of these developments for the functioning of the systems, but will also address broader issues, such as the meaning and goals of "reform." States, victims of violations, and civil society have markedly different views as to what problems need to be addressed by reform. Some reforms hint at a shifting conception of the nature and purpose of international law, and the role of intergovernmental organizations in making and interpreting that law.

All of these systems face certain common challenges, such as limited resources, political constraints, and inconsistent levels of member state cooperation. Efforts at reform necessarily involve attempts to find an appropriate balance between the need for efficiency and the effective resolution of human rights problems in individual cases. At the same time, the regional systems must also grapple with the implications of their own regionality and how this informs the scope of their competence and nature of their mandate. Notwithstanding these commonalities, the precise configuration of problems that reform is intended to address varies considerably from system to system, in light of their particular histories as well as the political climates in which they operate.

Ultimately, efforts at strengthening human rights systems will always collide with the underlying structural deficiency of these systems. How effective can they be when they ultimately rely on states to regulate themselves? In exploring these issues, we are fortunate to have guidance from leading human rights authorities from each of these systems--the New York representative of the UN High Commissioner for Human Rights and judges from each of the regional human rights courts.

REMARKS ON THE HUMAN RIGHTS COUNCIL

By Ngonlardje Mbaidjol ([double dagger])

The Human Rights Council (HRC) was established by the General Assembly (GA) on March 15, 2006, following months of intense and at times difficult negotiations in the wake of the World Summit held in September 2005. The Human Rights Council remains a political body composed of 47 members representing a geographic distribution of seats. (1) The establishment of the HRC was considered an essential element of the overall reform of the United Nations. As the main intergovernmental human rights body, replacing the former Commission on Human Rights (CHR), the HRC aims to emphasize the centrality of human rights within the UN system. In this regard, GA Resolution 60/251 explicitly incorporates the concept of "human rights mainstreaming" to allow the HRC to promote and coordinate human rights activities in the United Nations' other areas of focus, such as development, peace, and security.

Since its establishment, the Council has held four regular sessions and several special sessions: on Darfur/Sudan, Lebanon, and the occupied Palestine Territory. During its fourth regular session, the Council adopted seven resolutions and two decisions including a text on Darfur. One of the main features of the new council is its ability to meet frequently in both regular and special sessions which transformed it into a de facto standing body. The Council has a higher status than the defunct Commission with no more reporting to ECOSOC but direct links to the UN General Assembly as its subsidiary organ.

The Council is still in an institution-building mode. Its forthcoming work on the Universal Periodic Review (UPR) system that will be put in place is one of its challenging features. Three intergovernmental working groups are taking care of six processes, including the UPR and the review of mandates and mechanisms assumed by the former Commission on Human Rights. They will come with institution-building proposals to be agreed upon during the fifth regular session of the Council in June 2007.

THE CASE OF THE EUROPEAN COURT OF HUMAN RIGHTS

By Christos L. Rozakis **

An ever-increasing concern of the international community for the protection of human rights has brought to life, during the last fifty years or so, a number of international mechanisms of protection, of a universal or regional character, which have all contributed to the improvement of human rights protections around the world. Among them, the European system for the protection of human rights can be singled out as representing, at least for the time being, a model system of protection. Its uniqueness can be attributed to the fact that the European Convention on Human Rights, which is the legal instrument on which the system is based, provides for a right of petition by all the individuals who are within the jurisdiction of the states parties to it, and an adjudication of their complaints by a court, the European Court of Human Rights, to which they can directly refer their grievances, and obtain a judgment binding upon the states parties to the Convention.

However, this system of protection, which has been used as a model for other regional protection mechanisms (the Inter-American system and the African system), has become a victim of its own success. The number of incoming individual applications has increased dramatically over the last ten years, in a way which has created insuperable problems for their speedy, and, I would say, effective determination. To mention just two statistical data, the number of cases pending before the Court now exceeds 90,000, while in 2006 alone, the Strasbourg institution received more than 50,000 petitions. It is an undisputable fact that no international court, with the capacity and means that the Court has at its disposal today, can deal with such an immense number of...

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